# Dunbar v. Department of Mental Health > Michigan Court of Appeals · November 17, 1992 · 197 Mich. App. 1 URL: https://www.frixlaw.com/law-library/cases/9730887 ## Case - **Full name:** Dunbar v. Department of Mental Health - **Court:** Michigan Court of Appeals - **Decided:** November 17, 1992 - **Citations:** 197 Mich. App. 1; 495 N.W.2d 152 - **Precedential status:** Published - **Opinion:** Concurrence by Sawyer - **Judges:** Sawyer, Murphy, Borrello - **Cited by:** 22 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9730887 ## Opinion text Sawyer, P.J. (concurring in part and dissenting in part). While I agree with the majority’s analysis of the issue of the jurisdiction of the Court of Claims, I respectfully dissent from the holding that a retaliatory discharge claim sounds in tort and, therefore, mental anguish damages are appropriate. I would hold that a retaliatory discharge claim sounds in contract and, therefore, damages may not be recovered for mental anguish. Valentine v General American Credit, Inc, 420 Mich 256, 259 ; 362 NW2d 628 (1984). The majority relies upon Goins v Ford Motor Co, 131 Mich App 185 ; 347 NW2d 184 (1983), for the proposition that a retaliatory discharge claim sounds in tort. Goins does, in fact, state that a "wrongful discharge cause is one sounding in tort, not contract.” Id. at 198 . In support of that proposition, Goins looked to Sventko v Kroger Co, 69 Mich App 644 ; 245 NW2d 151 (1976). However, a careful reading of Sventko reveals that it does not stand for the proposition that a wrongful discharge claim sounds in tort rather than contract. Rather, Sventko merely stands for the proposition that there exists a cause of action for retaliatory discharge for filing a workers’ compensation claim. Nowhere in either the lead opinion or the concurring opinion does the Court state whether that cause of action sounds in tort or contract. 1 While the holding in Goins is at best suspect, there does exist firm precedent for the proposition that a claim of wrongful discharge sounds in contract, not tort. In Lopus v L & L Shop-Rite, Inc, 171 Mich App 486 ; 430 NW2d 757 (1988), the plaintiff sued her former employer, alleging retaliatory discharge in that her employment was ter *12 minated in anticipation of her filing a workers’ compensation claim. This Court, relying on Watassek v Dep’t of Mental Health, 143 Mich App 556 ; 372 NW2d 617 (1985), concluded that an action for wrongful discharge in retaliation for having filed a workers’ compensation claim sounds in contract, not tort. 2 Similarly, in Mourad v Auto Club Ins Ass’n, 186 Mich App 715 ; 465 NW2d 395 (1991), a case involving an alleged "retaliatory demotion,” this Court again held that retaliatory discharge claims sound in contract, not tort. Id. at 727 , citing Lopus, supra, and Watassek, supra. I note that the majority does not address the fact that the conclusion in Mourad that retaliatory discharge is a variety of wrongful discharge and, therefore, sounds in contract represents a rule of law that must be followed under Administrative Order No. 1990-6, 436 Mich lxxxiv . In the earlier case of Watassek , this Court considered the question whether the plaintiffs claim for retaliatory discharge was precluded by the doctrine of governmental immunity. 3 This Court rejected the argument that the plaintiffs claim was barred by governmental immunity because a retaliatory discharge claim sounds in contract, not tort: . As the Supreme Court discussed in Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579 ; 292 NW2d 880 (1980), reh den 409 Mich 1101 (1980), cf., Valentine v General American Credit, Inc, 420 Mich 256 ; 362 NW2d 628 (1984), an action *13 for wrongful discharge is one mainly ex contractu. An action claiming retaliatory discharge is an action asserting a specific type of wrongful discharge and thus constitutes a contract action. Although we are’ mindful of the case of Goins v Ford Motor Co, 131 Mich App 185, 198 ; 347 NW2d 184 (1983), lv gtd 422 Mich 857 (1985), wherein this Court ruled that an action for retaliatory discharge was one in tort, we can find no rational basis to label one wrongful discharge a contract and the other a tort. Moreover, we find that the Goins panel’s reliance on Sventko, supra, is misplaced; that case did not in fact determine that the action was one in tort. Although the Goins panel also relied on Scott v Union Tank Car Co, 75 Ind App 150; 402 NE2d 992 (1980), a case in which the Indiana Appeals court ruled, on facts similar to those in Sventko , that the claim sounded in tort, we note with approval the lengthy dissent which reasons that the claim is better characterized as one in contract. Finally the Trombetta [v Detroit, T & I R Co, 81 Mich App 489 ; 265 NW2d 385 (1978)] and Sventko, supra, cases consider the issue of wrongful discharge in terms of an employment contract and not as a tort. [Watassek, supra at 564-565 .] Thus, there is sound precedent from both this Court and the Supreme Court holding that a wrongful discharge claim sounds in contract and that retaliatory discharge is a variety of wrongful discharge. Therefore, the inescapable conclusion is that retaliatory discharge claims also sound in contract, not tort. 4 _ *14 For the above reasons, I would hold that a claim for retaliatory discharge for-filing a workers’ compensation claim sounds in contract, not tort, and, therefore, plaintiff is not entitled to damages for mental anguish. Valentine, supra. Accordingly, I would reverse that portion of the judgment ($30,000) that reflects an award for mental anguish. The dissent argued that the cause of action does not even exist. It should be noted that more recent cases have held that there is no cause of action for discharge in anticipation of filing a workers’ compensation claim. See, e.g., Griffey v Prestige Stamping, Inc, 189 Mich App 665 ; 473 NW2d 790 (1991). It is interesting to note that the majority, while calling the claim in this case a tort, does not address the ramifications of that holding with respect to the doctrine of governmental immunity. As for the majority’s theory that the statute, MCL 418.301(11); MSA 17.237(301X11), imposes a duty on an employer not to engage in retaliatory discharge, and a breach of that duty sounds in tort, I am unpersuaded. First, "breach of duty” is a negligence concept and one intentionally, not negligently, terminates employment. Therefore, such termination would constitute an ultra vires act by a supervisor for which defendant would not be responsible. Second, the statute does not actually create a cause of action or set forth a remedy. It merely prohibits an employer from engaging in retaliatory discharge, *14 without indicating whether the appropriate remedy is an award of back pay, injunctive relief to reinstate the employee to his position, or the establishment of a claim in tort or contract. At best, the statute merely represents a codification of the rule set forth in Sventko . As discussed above, the stronger line of reasoning has established that retaliatory discharge is an action sounding in contract. There is certainly nothing in the statute that indicates an • intent by the Legislature in codifying Sventko to transform a contract action into a tort action. As with the Watassek panel, I see no rational basis for classifying some forms of retaliatory discharge as torts, while classifying others as breaches of contract. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9730887. Public record. Not legal advice.